Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0752

January 20, 2021

Reversed and Remanded


  • Whether the trial court erred in applying Massachusetts’s pretermitted heir statute to determine whether petitioner was a pretermitted heir under his mother’s will.
  • Whether the trial court erred in finding that the petitioner was not a pretermitted heir under his mother’s will and therefore not entitled to his intestate share of his mother’s estate.


The decedent executed her will in Massachusetts in 2014, at which time she was also a resident of Massachusetts.  She moved to New Hampshire in 2017 and died a year later.  Before her death, she sold her real property in Massachusetts.  The parties did not dispute that her only remaining assets consisted of personal property.  The decedent was survived, in part, by her son (the petitioner) and her ex-daughter-in-law (the respondent).  The decedent’s will provided that the “rest, residue and remainder of [her] estate” was to be given to the respondent.  The will further provided that the decedent had intentionally omitted to mention, or to devise or bequeath or give any of her property to anyone other than those mentioned in the will.  Finally, the will provided that it was to be administered and enforced according to the laws of Massachusetts.

After the Massachusetts court rejected an attempt to probate the will in Massachusetts, the petitioner sought administration in New Hampshire, which was ultimately granted over respondent’s objection.  The petitioner sought a determination he was a pretermitted heir under the will, and the respondent objected.  The probate court ruled Massachusetts’ pretermitted heir statute applied.  The probate court then ruled that because the decedent’s will selected Massachusetts law and expressly stated anyone not named was purposely excluded, the petitioner was not a pretermitted heir under Massachusetts law.

On appeal, the petitioner argued that New Hampshire law should apply because, at the time of her death, the decedent was domiciled in New Hampshire and her estate consisted solely of personal property.  The respondent argued that the clear language of the will (electing Massachusetts law) should govern.

The Court held that the law in New Hampshire is clear – personal property of a testator generally passes according to the law of the state of domicile.  The Court found no reason to deviate from that rule, which also comports with the Restatement (Second) Conflicts of Laws.

The respondent argued that, based on In re Farnsworth Estate (1968) and Royce v. Estate of Denby (1977), the Court could give effect to the decedent’s election of Massachusetts law.  The Court distinguished Farnsworth Estate on the grounds that it was a case dealing with a testamentary trust created by will, and Royce on the grounds that the testator was incapacitated before becoming a domiciliary of New Hampshire and never regained capacity.

The Court noted that its prior case law did not address the facts in this case, where the decedent expressed her intent to have her will administered and enforced according to the laws of another state. The Court found that New Hampshire law does not permit application of another state’s pretermitted heir statute to dispose of personal property.  The Court also ruled that although the Restatement (Second) Conflicts of Law supports a testator’s ability to select rules of construction in bequeathing personal property, the Court has not yet adopted that provision and would not do so here, as New Hampshire’s pretermitted heir statute is not a rule of construction but a conclusive rule of law.

Having found that New Hampshire’s pretermitted statute applied, the Court held that because the petitioner was not expressly named in the will, he was a pretermitted heir under New Hampshire law.  The vague reference excluding “any other than those mentioned in the will” was insufficient to demonstrate the decedent intentionally excluded the petitioner.  The Court reversed the probate court on both the applicable law and the finding that the petitioner was not a pretermitted heir, and remanded for further proceedings consistent with the Court’s ruling.


Nadine M. Catalfimo, Salem, on the brief, and Casassa Law Office, Hampton (Lisa J. Bellanti, on the brief and orally), for the petitioner.  Tyler Pentorilos, Haverhill, Massachusetts, on the brief and orally, for the respondent.